STATE OF NEW JERSEY VS. ALFRED W. COURSEY, III

Defendant Alfred W. Coursey, III, appeals from his

conviction for third-degree possession of cocaine, N.J.S.A.

2C:35-10(a)(1). The judgment of conviction was based on

defendant's guilty plea, following his indictment for fourth

degree possession of marijuana with intent to distribute,

N.J.S.A. 2C:35-5(a)(1), -5(b)(12), and third-degree cocaine

possession. Defendant was sentenced to one year of probation.

Defendant's appeal focuses on the denial of his suppression

motion, and his rejection from the pre-trial intervention

program (PTI). He presents the following points of argument:

I. THE COURT ERRED IN DENYING THE DEFENDANT'S SUPPRESSION MOTION BECAUSE THE TROOPER LACKED AUTHORITY TO MAKE A WARRANTLESS ARREST BASED SOLELY ON THE SMELL OF MARIJUANA.

II. THE PROSECUTOR'S REJECTION OF DEFENDANT'S ADMISSION INTO PTI WAS BASED ON A CATEGORICAL BAN OF ADMISSION FOR ALL PERSONS CHARGED WITH FOURTHDEGREE POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE, REQUIRING REVERSAL OF THE REJECTION OR, ALTERNATIVELY, A REMAND FOR RECONSIDERATION.

A. BECAUSE THE PROSECUTOR APPLIED A CATEGORICAL BAR TO ADMISSION BASED ON THE OFFENSE CHARGED, A REMAND IS REQUIRED FOR RECONSIDERATION.

B. IN ADDITION, BECAUSE GUIDELINE 3(I) DOES NOT LIST POSSESSION WITH INTENT TO DISTRIBUTE CDS AS A CRIME FOR WHICH THE PRESUMPTION AGAINST ADMISSION ATTACHES, AND BECAUSE MARIJUANA CAN NO LONGER BE PROPERLY CLASSIFIED AS A SCHEDULE I SUBSTANCE, THE PROSECUTOR APPLIED THE INCORRECT STANDARD FOR DETERMINING ADMISSION.

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C. EVEN IF NO CATEGORICAL BAR WAS IMPOSED AND THE PRESUMPTION AGAINST ADMISSION APPLIES, THE PROSECUTOR'S REJECTION OF COURSEY'S PTI APPLICATION WAS A PATENT AND GROSS ABUSE OF DISCRETION.

III. A REMAND IS REQUIRED BECAUSE THE DEFENDANT WAS PRECLUDED FROM PRESENTING EVIDENCE OF HIS DRUG DEPENDENCY, WHICH WOULD HAVE NEGATED THE PRESUMPTION AGAINST ADMISSIBILITY.

Having reviewed the record in light of the applicable legal

standards, we affirm the denial of defendant's suppression

motion. However, because both the prosecutor's office and the

trial court mistakenly applied PTI Guideline 3(i) to fourth

degree possession of marijuana with intent to distribute, we

reverse the order denying his PTI appeal and remand for

reconsideration of his application by the prosecutor's office.

I

We begin by addressing defendant's suppression motion.

According to the arresting officer, Trooper Scowcroft, he

stopped defendant's car after observing that the vehicle was

missing a front license plate and had a cracked windshield, and

that defendant appeared not to be wearing a seatbelt. Scowcroft

approached the stopped vehicle from the driver's side and asked

defendant for his credentials. At that point, Scowcroft noticed

"the strong odor of burnt marijuana emanating from inside the

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vehicle." Based on that observation, Scowcroft ordered

defendant to get out of the car and handcuffed him.1

Scowcroft administered Miranda2 warnings, which defendant

waived. He then read defendant a consent to search form, after

which defendant consented to a search of the vehicle. The

search yielded marijuana and cocaine, which resulted in

defendant's indictment. In addition to the trooper's testimony,

the State introduced the video of the stop, recorded from the

trooper's car.

In his hearing testimony, defendant asserted that at the

time of his arrest, the license plate was affixed to the front

of the car. He admitted that when the trooper read him the

consent to search form, he understood that he had the right to

refuse consent.

The defense argued that the trooper lacked "probable cause"

to stop defendant's car, contending that the license plate was

affixed to the car and that the trooper's testimony about

smelling burnt marijuana was not credible. Defense counsel also

argued that consent to search was coerced, because the trooper

did not seek consent until after defendant was arrested and

1 The record reflects that defendant was the only occupant of the car.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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handcuffed. In response, the prosecutor argued that the trooper

had reasonable grounds for the stop, defendant's consent was

voluntary, and the smell of marijuana constituted probable cause

to arrest defendant. The defense did not contest the latter

point.

The motion judge found Trooper Scowcroft's testimony

credible. He did not believe defendant's testimony that the

license plate was affixed to the car. The judge therefore

concluded that there was "a legal basis for the stop." He also

found that no coercion was involved in the request for consent

to search, and that defendant gave his voluntary and informed

consent after being told "three times he [had] the right to

refuse."

On this appeal, defendant argues for the first time that

the trooper lacked probable cause to arrest him based on the

smell of burnt marijuana. Ordinarily we will not consider on

appeal an issue defendant did not raise in the trial court. See

State v. Robinson, 200 N.J. 1, 19-20 (2009). However, even if

we consider the issue, it is without merit.3

3 We will not consider defendant's argument that the trooper failed to establish his expertise concerning the smell of marijuana. Had defendant raised the probable-cause-to-arrest issue, the State could have created a record on that point.

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Defendant was driving the car and was its only occupant.

"[U]sing or possessing marijuana in a motor vehicle in New

Jersey is a per se violation of the laws of this State." State

v. Judge, 275 N.J. Super. 194, 202 (App. Div. 1994). Based on

the strong smell of burnt marijuana, the trooper had probable

cause to suspect that defendant was committing what we have

characterized as the "serious traffic offense" of driving a car

while using marijuana, N.J.S.A. 39:4-49.1. Id. at 201-02.

Under the circumstances, there was probable cause to arrest

defendant:

N.J.S.A. 39:5-25 permits a police officer to effectuate an arrest for Chapter 4 traffic offenses occurring in the presence of the officer. Smoking or knowingly possessing marijuana by the driver of the motor vehicle on the highway violates Chapter 4. The "in presence" requirement of N.J.S.A. 39:5-25 is satisfied by the trooper's use of his sense of smell in much the same manner as if he had used his sight or hearing or touched an object such as a sawed off shotgun. Recently, our Supreme Court limited an arrest pursuant to N.J.S.A. 39:5-25 for traffic offenses. State v. Pierce, [136 N.J. 184, 191-211 (1994)]. But Pierce permits an arrest for a violation of N.J.S.A. 39:4-49.1 because it directly implicates public safety. Id. at 205[.]

[Id. at 203-04 (citations omitted).]

Thus, the trooper's "smell of the odor of marijuana emanating

from defendant's car gave him probable cause, which justified

his arrest of defendant." State v. Myers, 442 N.J. Super. 287,

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295-97, 304 (App. Div. 2015), certif. denied, 224 N.J. 123

(2016).

Defendant's arguments on this point are without sufficient

merit to warrant further discussion. R. 2:11-3(e)(2). The trial

judge's factual findings are supported by sufficient credible

evidence and based on those facts, his legal conclusions are

correct. See State v. Watts, 223 N.J. 503, 516 (2015). We

affirm the June 27, 2014 order denying defendant's motion to

suppress.

II

Next we address defendant's argument concerning his

exclusion from PTI. The prosecutor relied in part on the

presumption against admission into PTI of non-addicts charged

with the sale or distribution of Schedule I or II narcotics.

See Guidelines for Operation of Pretrial Intervention in New

Jersey, Pressler & Verniero, Current N.J. Court Rules, Guideline

3(i), following R. 3:28 at 1193 (2016) (hereinafter Guideline

3(i)). The prosecutor rejected defendant's PTI application,

reasoning that the eighteen bags of marijuana, plus cocaine, and

about $500 in cash, found during the search, were evidence that

defendant intended to sell the drugs for profit and not to

support an addiction. The prosecutor noted the absence of

evidence that defendant was a drug addict or possessed those

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amounts of drugs for personal use. In denying defendant's PTI

appeal the trial court relied on the same presumption against

PTI admission, based on defendant's being charged with

possession of marijuana with intent to distribute.

We conclude that the prosecutor erred in applying Guideline

3(i), because 3(i) does not apply to third or fourth-degree

marijuana possession with intent to distribute. Cf. State v.

Caliguiri, 158 N.J. 28, 32, 43 (1999) (third-degree marijuana

possession with intent to distribute in a school zone, N.J.S.A.

2C:35-7, an offense "carrying a mandatory term of

imprisonment[,]" can be treated as included in Guideline 3(i)).

The applicable PTI Guideline applies a presumption against

PTI eligibility for defendants charged with crimes of violence,

organized crime, breach of the public trust, or with some of the

most serious drug-related offenses. Guideline 3(i). In

pertinent part it provides:

A defendant charged with a first or second degree offense or sale or dispensing of Schedule I or II narcotic drugs as defined in L. 1970, c. 226 (N.J.S.A. 24:21-2 et seq.) by persons not drug dependent, should ordinarily not be considered for enrollment in a PTI program except on joint application by the defendant and the prosecutor. However, in such cases, the applicant shall have the opportunity to present to the criminal division manager, and through the criminal division manager to the prosecutor, any facts or materials demonstrating the applicant's amenability to the

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rehabilitative process, showing compelling reasons justifying the applicant's admission and establishing that a decision against enrollment would be arbitrary and unreasonable.

[Guideline 3(i) (emphasis added).] As previously noted, Guideline 3(i), by its terms, applies

to violent offenses and other "serious or heinous crimes."

State v. Watkins, 193 N.J. 507, 514 (2008). The enumerated

offenses "represent a legislative decision to prevent serious

offenders from avoiding prosecution in ordinary circumstances."

Caliguiri, supra, 158 N.J. at 42. The listed offenses include

"sale or dispensing of Schedule I or II narcotic drugs as

defined in . . . N.J.S.A. 24:21-1 et seq." Guideline 3(i).

Marijuana is still included in the definition of a Schedule

I controlled dangerous substance (CDS). N.J.S.A. 24:21

5(e)(10); see Myers, supra, 442 N.J. Super. at 298, 302-04.

However, marijuana is not a "narcotic drug" as defined in

N.J.S.A. 24:21-2 (defining "narcotic drug" as "[o]pium, coca

leaves, and opiates," as well as related substances). Moreover,

possession with intent to distribute is not technically a sale,

nor is it "dispensing" as defined in N.J.S.A. 24:21-2 (defining

to "dispense" as to deliver a CDS "subject by or pursuant to the

lawful order of a practitioner").

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The Supreme Court in Caliguiri provided guidance on how to

interpret Guideline 3(i) generally and in this instance. In

Caliguiri, the Court addressed the application of Guideline 3(i)

to a defendant charged with possession of marijuana with intent

to distribute in a school zone, N.J.S.A. 2C:35-7, a third-degree

crime. Caliguiri, supra, 158 N.J. at 42-43. The Court

concluded that, because the Legislature had chosen to treat

school zone drug offenses as particularly serious crimes, by

giving them a penalty structure "'similar to that for second

degree offenses,'" including a mandatory prison term, the

defendant should be subject to 3(i), as though he had been

charged with a second-degree drug offense. Id. at 32, 43

(quoting State v. Baynes, 148 N.J. 434, 449 (1997)). Clearly,

if possession of marijuana with intent to distribute were

already included in 3(i), the Court would not have needed to

consider that issue. Hence, we infer that the Court did not

consider ordinary third-degree or lower charges of marijuana

possession with intent to distribute as being covered by

Guideline 3(i). In light of Caliguiri, and given the remedial

purpose of PTI, we will not construe Guideline 3(i) as applying

to the relatively low-level offenses of non-school-zone third or

fourth-degree possession of marijuana with intent to distribute.

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See N.J.S.A. 2C:43-12(a); State v. Roseman, 221 N.J. 611, 621-22

(2015); Watkins, supra, 193 N.J. at 513.4

A defendant charged with one of the crimes included in

Guideline 3(i) faces a significant hurdle to PTI admission,

which other applicants need not surmount. Accordingly, the

mistaken application of Guideline 3(i) to a defendant not

charged with one of the included crimes constitutes a gross and

4 Based only on its wording, it is not clear whether Guideline 3(i) applies to possession of Schedule I and II narcotics with intent to distribute, or only to the "sale" of those narcotics. The term "distribute" includes both selling or sharing CDS. See N.J.S.A. 24:21-2; State v. Roach, 222 N.J. Super. 122, 126-27 (App. Div. 1987), certif. denied, 110 N.J. 317 (1988). The pertinent criminal statute, N.J.S.A. 2C:35-5, makes it unlawful "[t]o manufacture, distribute or dispense, or to possess . . . with intent to manufacture, distribute or dispense, a controlled dangerous substance." N.J.S.A. 2C:35-5(a)(1) (emphasis added). Guideline 3(i) does not track the language of N.J.S.A. 2C:355(a)(1), because it only refers to "sale," which is a subset of "distribute," and it does not list possession with intent. On the one hand, it is possible that 3(i) intentionally listed only the "sale" of CDS because it was aimed at persons who sell drugs for profit, as opposed to individuals who share CDS with companions. On the other hand, under N.J.S.A. 2C:35-5(b), possession with intent to distribute the listed drugs is the same degree crime as the sale of those drugs, suggesting that under Caliguiri's rationale 3(i) would, for example, apply to possession with intent to distribute heroin equally with the sale of heroin. Because marijuana is plainly not a "narcotic drug" within the meaning of 3(i), and because Caliguiri did not consider third-degree possession of marijuana with intent to distribute to be itself sufficient to trigger 3(i), we need not definitively address the issue in this case. However, we refer this issue to the Criminal Practice Committee for its consideration.

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patent abuse of the prosecutor's discretion. See Roseman,

supra, 221 N.J. at 627; State v. Bender, 80 N.J. 84, 93 (1979).

In this case, the prosecutor applied the presumption of PTI

ineligibility to defendant, based on his having been charged

with fourth-degree possession of marijuana with intent to

distribute, N.J.S.A. 2C:35-5(b)(12). The trial court applied

the presumption as well. That error requires that we reverse

the PTI order on appeal and remand this case to the prosecutor

for reconsideration ab initio. See Roseman, supra, 221 N.J. at

629; Bender, supra, 80 N.J. at 97.

In addition to challenging the prosecutor's PTI decision,

defendant argues that his trial counsel was ineffective in

failing to bring to the prosecutor's attention defendant's

substance abuse problems. We also note that, in sentencing

defendant, the trial judge did consider his drug problem as a

mitigating factor. Even if not required to address Guideline

3(i), evidence of a defendant's drug dependency may be an

important factor in a PTI application. See N.J.S.A. 2C:43

12(a)(1). To avoid a miscarriage of justice, we direct that, as

part of the prosecutor's reconsideration of defendant's PTI

application, defendant shall be given an opportunity to submit

to the prosecutor any available evidence that he was drug

dependent at the time he committed the offenses with which he

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was charged.5

Given the passage of time, and our requirement that the review be ab initio, defendant may also bring to the prosecutor's attention any other pertinent information bearing on his PTI application. Affirmed in part, reversed and remanded in part. We do not retain jurisdiction.